Trials@uspto.gov
`571.272.7822
`
`
`
`
`
` Paper No. 27
`
` Entered: March 29, 2016
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`ALTAIRE PHARMACEUTICALS, INC.,
`Petitioner,
`
`v.
`
`PARAGON BIOTECK, INC.,
`Patent Owner.
`____________
`
`Case PGR2015-00011
`Patent 8,859,623 B1
`____________
`
`
`
`Before SHERIDAN K. SNEDDEN, ZHENYU YANG, and
`CHRISTOPHER G. PAULRAJ, Administrative Patent Judges.
`
`YANG, Administrative Patent Judge.
`
`
`
`
`
`
`
`
`DECISION
`Petitioner’s Motion to Seal
`37 C.F.R. §§ 42.14, 42.54
`
`
`
`
`
`
`
`
`571.272.7822
`
`
`
`
`
` Paper No. 27
`
` Entered: March 29, 2016
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`ALTAIRE PHARMACEUTICALS, INC.,
`Petitioner,
`
`v.
`
`PARAGON BIOTECK, INC.,
`Patent Owner.
`____________
`
`Case PGR2015-00011
`Patent 8,859,623 B1
`____________
`
`
`
`Before SHERIDAN K. SNEDDEN, ZHENYU YANG, and
`CHRISTOPHER G. PAULRAJ, Administrative Patent Judges.
`
`YANG, Administrative Patent Judge.
`
`
`
`
`
`
`
`
`DECISION
`Petitioner’s Motion to Seal
`37 C.F.R. §§ 42.14, 42.54
`
`
`
`
`
`
`
`
`
`PGR2015-00011
`Patent 8,859,623 B1
`Petitioner filed a Motion to seal portions of the deposition transcript
`of Assad Sawaya (Ex. 2034) and Patent Owner’s Response (Paper 20).1
`Paper 24 (“Mot.”), 1. Patent Owner filed a confidential version (Paper 25)
`and a redacted version (Paper 26) of Opposition to the Motion (“Opp.”).
`Petitioner’s Motion is denied without prejudice.
`There is a strong public policy in favor of making information filed in
`a post-grant review open to the public. Generally, the record of a post-grant
`review proceeding shall be made available to the public. 35 U.S.C.
`§ 326(a)(1); 37 C.F.R. § 42.14. Our rules, however, “aim to strike a balance
`between the public’s interest in maintaining a complete and understandable
`file history and the parties’ interest in protecting truly sensitive information.”
`Office Patent Trial Practice Guide, 77 Fed. Reg. 48,756, 48,760 (Aug. 14,
`2012). Thus, a party may move to seal certain information (37 C.F.R.
`§ 42.14); but only “confidential information” is protected from disclosure
`(35 U.S.C. § 326(a)(7)). Confidential information means trade secret or
`other confidential research, development, or commercial information. 37
`C.F.R. § 42.2.
`As the movant, Petitioner bears the burden of proof to demonstrate
`that it is entitled to the requested relief. 37 C.F.R. § 42.20(c). The standard
`for granting a motion to seal is “for good cause.” 37 C.F.R. § 42.54(a).
`Petitioner must provide sufficient facts to demonstrate that the materials it
`
`
`1 On February 22, 1016, at the request of Petitioner, the panel held a
`conference with the parties, discussing the proper procedure to avoid
`disclosing confidential information. During the call, Patent Owner stated
`that it saw no need to keep most, if not all, of the redacted information under
`seal. Nevertheless, according to Patent Owner, it filed a redacted version of
`the Response (Paper 21) because Petitioner insisted so.
`
`1
`
`
`
`PGR2015-00011
`Patent 8,859,623 B1
`seeks to seal is confidential. See Corning Optical Commc’ns RF, LLC v.
`PPC Broadband, Inc., Case IPR2014-00736, Paper 37, slip op. at 2–3
`(PTAB Apr. 6, 2015).
`Petitioner asserts that the information it seeks to seal relates to
`“corporate strategic operation and planning, board decision making
`procedures, ownership interests of privately held entities, and financial
`information.” Mot. 2. According to Petitioner, the disclosure of such
`information “would cause significant economic and competitive harm to
`Petitioner.” Id.
`Patent Owner states that it does not oppose the Motion to the extent
`that “it seeks to seal information regarding certain specific terms of a non-
`public agreement between the parties.” Opp. 1. According to Patent Owner,
`“Petitioner, however, moves to keep large swaths of the deposition of Al
`Sawaya [Ex. 2034] under seal, which would also necessitate keeping under
`seal an entire section of Paragon’s Patent Owner Response [Paper 20].” Id.
`After reviewing the confidential and the redacted versions of Exhibit
`2034 and Paper 20, we determine that those documents have been
`excessively redacted. In both documents, Petitioner requests to redact
`numerous pages of materials, without specifically explaining why the
`information is confidential. See Mot. 5–10. For example, Al Sawaya
`previously testified that “Saw Aque is a holding company that holds real
`property.” Ex. 1022 ¶ 8. Even though Exhibit 1022 was filed under the
`protective order, Petitioner chose not to redact this information. Because
`this information is public, Petitioner cannot now assert it is confidential. See
`Mot. 6 (seeking to redact Ex. 2034, 32:15–19).
`Petitioner’s Motion is also conclusory, with essentially no
`presentation of specific facts for a meaningful analysis. For example,
`
`2
`
`
`
`PGR2015-00011
`Patent 8,859,623 B1
`Petitioner asserts that disclosure of the redacted information “would allow a
`competitor or potential investors to access Petitioner’s highly sensitive
`financial information and strategic decision making processes.” Mot. 2.
`Based on our review of the record, neither Exhibit 2034 nor Paper 20
`appears to contain any financial information. In another example, Petitioner
`seeks to redact the question and answer relating to how its shareholders may
`benefit from successfully challenging the patentability of the ’623 patent.
`See Mot. 5 (requesting redaction of Ex. 2034, 16:7–10, 13–15). Petitioner
`does not explain how this redacted information relates to, as Petitioner
`asserts, “corporate strategic operation and planning, board decision making
`procedures, ownership interests of privately held entities, and financial
`information.” See Mot. 2.
`Upon considering the content of Exhibit 2034 and Paper 20, we
`determine that Petitioner has not shown a good cause to seal the redacted
`portions thereof. We recognize that a denial of Petitioner’s Motion, in the
`normal course, would result in immediately unsealing the material Petitioner
`desires to be placed under seal, which would be irreversible. Instead of
`denying the Motion outright, we, however, provide Petitioner five business
`days, if it chooses to do so, to file a renewed motion to seal supported by a
`declaration by an officer of Petitioner. In the renewed motion and/or the
`supporting declaration, Petitioner must (1) explain why each portion of the
`information in Exhibit 2034 and Paper 20 it seeks to redact constitutes
`“confidential information” as defined in 37 C.F.R. § 42.2; and (2) explain
`why good cause exists for each redaction.
`
`Accordingly, it is
`ORDERED that Petitioner’s Motion is denied without prejudice;
`
`3
`
`
`
`PGR2015-00011
`Patent 8,859,623 B1
`FURTHER ORDERED the current redacted version of the deposition
`transcript of Assad Sawaya (Ex. 2034) and Patent Owner’s Response (Paper
`21) are expunged from the record;
`FURTHER ORDERED Petitioner must review the redactions to the
`deposition transcript of Assad Sawaya (Ex. 2034) and Patent Owner’s
`Response (Paper 20), and un-redact any portions with information that is not
`“confidential information” as defined in 37 C.F.R. § 42.2;
`FURTHER ORDERED that as to any remaining redactions, Petitioner
`is authorized to file a renewed motion to seal;
`FURTHER ORDERED that the renewed motion to seal is limited to
`seven pages and must be filed within five business days of the entry date of
`this Order;
`FURTHER ORDERED that the renewed motion to seal must be
`supported by a declaration by an officer of Petitioner, attesting to the
`necessity for each redaction, including the confidential nature of the
`redacted material, and the specific alleged harm to Petitioner that would
`result from its disclosure;
`FURTHER ORDERED that Patent Owner is authorized to file an
`opposition to Petitioner’s renewed motion to seal;
`FURTHER ORDERED that Patent Owner’s opposition is limited to
`seven pages and must be filed within five business days of the filing date of
`Petitioner’s renewed motion to seal.
`
`4
`
`
`
`PGR2015-00011
`Patent 8,859,623 B1
`PETITIONER:
`
`Dipu A. Doshi
`Jonathan W. S. England
`Mark J. Thronson
`BLANK ROME LLP
`DDoshi@BlankRome.com
`JWEngland@BlankRome.com
`MThronson@BlankRome.com
`
`
`PATENT OWNER:
`
`Michael T. Rosato
`Steven W. Parmelee
`WILSON SONSINI GOODRICH & ROSATI
`mrosato@wsgr.com
`sparmelee@wsgr.com
`
`5
`
`
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